Simmons v. Mcconnell's Adm'r

• Decision Date: 13 February 1890
• Parties: Simmons et al. v. McConnell's Adm'r.
• Court: Virginia Supreme Court

10 S.E. 838

(86 Va. 494)

Simmons et al.

v.McConnell's Adm'r.

Supreme Court of Appeals of Virginia.

Feb. 13, 1890.

Wrongful Death—Instructions—Objections to Jurors.

1. In an action by a husband for the alleged negligent killing of his wife, evidence that after marriage there was a marked change for the better in the husband's habits, and in his pecuniary affairs, is admissible on the question of damages, as the jury may consider all the circumstances that give character to the transaction.

2. Where the accident was caused by a fragment of stone which was thrown by a blast fired in defendant's stone-quarry, 500 or 600 feet distant, an instruction that defendants had a right to continue to conduct their business in their usual manner, if no accident had been previously occasioned thereby, was properly refused.

3. When defendants' counsel have had opportunity to examine the jurors before they were sworn, and have raised no objection to their competency, the verdict will not be set aside, though one of the jurors was employed in the same factory as plaintiff, but in a different department, and the sons of another worked in the department of which plaintiff was foreman, unless it appears that the verdict was wrong in principle, or the result of passion or prejudice.

4. The refusal of an instruction is not error, where another is given containing the same propositions of law as applied to the facts.

G. W. Hansbrough, Scott & Dupuy, and Penn & Cocke, for plaintiffs in error. Miller & Smith and Phlegar & Johnson, for defendant in error.

Fauntleroy, J. This is a writ of error to a judgment of the hustings court of Roanoke city, rendered at its December term, 1888, in an action of trespass on the case therein pending, in the name of James A. McConnell, administrator of Rosa Mc-Connell, plaintiff, against James S. Simmons and William F. Winch, defendants. In the month of April, 1888, James S. Simmonsand William F. Winch were the owners and operators of a rock quarry within the corporate limits of Roanoke city, which said quarry had been worked and owned by William Welch for some six years previous to his selling it to the said Simmons and Winch, some ten months previous to the 5th day of April, 1888, on which day a blast was fired at the said quarry, which threw a fragment of stone, weighing some 25 pounds, into the yard of the dwelling-house of a Mr. Obermeyer, between 500 and 600 feet from the said quarry, which struck and killed Mrs. Rosa McConnell, the wife of James A. McConnell, the appellee. The said James A. McConnell qualified as administrator of his deceased wife, and instituted this suit against the said James S. Simmons and William F. Winch for $10,000 damages. The jury found a verdict for the plaintiff for $6,000 damages, upon which verdict the hustings court entered judgment; to which this writ of error was allowed by one of the judges of this court.

The first error assigned in the petition of the plaintiff in error, as set forth in his bill of exceptions No. 1, is that the plaintiff's counsel was permitted by the court to ask a witness, who had testified to his intimate knowledge of and acquaintance with McConnell and his wife in their daily life, to "state whether there had been any change in Mr. McConnell's habits and pecuniary condition after marriage; and, if so, what?" To which question the witness answered: "There was a very great change for the better in Mr. McConnell's habits, and in his pecuniary affairs;" which said answer of the witness the court allowed to go to the jury as being admissible upon the quantum of damages. We think the evidence was properly admitted for the purpose, and when it was admitted, after the plaintiff had introduced evidence tending to prove that the death of the plaintiff's intestate was caused by the defendants' wrongful default, in the careless, unskillful, and negligent management of their business as quarry men, in making the blast. The deceased, thereby killed, was the wife of the plaintiff; and, in the action for the wrong causing her death, the jury could properly take into consideration all the circumstances which give character to the transaction. 2 Wait; Act. & Def. 468, § 5. In Matthews v. Warner's Adm'r, 29 Grat. 570, this court held that the jury was not tied down to mere pecuniary loss, but could give such damages as seemed to them to be fair and just. In the case of Railroad Co. v. Wightman's Adm'r, 29 Grat.431, Judge Staples says: "The statute is regarded by the courts as remedial in its character, —us affording compensation for injuries unknown to the common law, —and is to be liberally construed, to promote the objects the legislature manifestly had in view. And therefore it is the courts look to the relationship and dependent condition of the parties, the capacity and ability of the deceased, mental and physical, —and, indeed, all the surrounding circumstances and situation of the family, —to enable the jury properly to estimate the loss sustained, and to fix the measure of the damages. " In the case of Railroad Co. v. Noell's Adm'r, 32 Grat. 394, this court reaffirms and emphasizes the case of Matthews v. Warner's Adm'r, and holds that the loss of the "care, attention, and society " of the son, the "solace and comfort" afforded to his mother, and her "sorrow, suffering, and mental anguish " occasioned by his death, might all properly be consid-ered by the jury in estimating such damages as seemed to them fair and just. If the character and conduct of the wife be such that her death will cause but little "sorrow, suffering, and mental anguish" to the husband, then the fair and just proportion of the damages to be awarded by the jury will be measured accordingly. If, on the contrary, the wife be loving, tender, and dutiful to her husband, thrifty, industrious, economical, and prudent, —as the evidence in this case proved Mrs. McConnell to be, —then " her price is far above rubies;" and the loss of such a wife, of such an helpmeet, of such influence, of such a blessed and potent ministry and companionship, is a proper element of damages to be considered by the jury in fixing the solatium to be awarded to the husband for tearing her from his heart and home. Even in those states where the jury is tied down to consider and allow only pecuniary damages, such evidence has been...